Discretion Operationalized Through Law: Proprio Motu Decision-Making at the International Criminal Court

Abstract

The proprio motu power is a radical innovation of the Rome Statute. In light of the Court’s sprawling jurisdiction, the proprio motu power enables the Prosecutor to take independent action, without the prior sanction or trigger of any political actor, with respect to an expansive range of situations around the globe. Yet, a critical aspect of this formidable power remains ambiguous: whether the Prosecutor is required to initiate proprio motu investigations into every situation that satisfies the statutory criteria, or whether instead the Prosecutor has discretionary authority to select from among such admissible situations. On the one hand, the Statute does not expressly grant the Prosecutor such discretion. On the other, many aspects of the Court’s structure and status in the international criminal justice system argue compellingly that some discretion must exist. This Article will argue that the Prosecutor deploys the necessary discretion through the factors she is legally required to consider by the Statute, asserting a discretion that is both cabined and operationalized by law. The Statute requires that a situation be sufficiently grave to be admissible before the Court, but it does not further define the concept of gravity. In making proprio motu decisions to date, the Prosecutor has capitalized on this conceptual indeterminacy, asserting the authority to decide how gravity should be interpreted in different contexts and adopting interpretations that are inconsistent with and even contradictory to other OTP analyses. Such interpretive autonomy, when coupled with the flexibility of the concept itself, strongly resembles discretion. While such a manifestation of discretion is ostensibly a step back from a wholly unguided Prosecutor, it has unique and significant implications. In independently generating legal interpretations that are relatively unreviewable by the Court, the Prosecutor feeds and directs the substantive development of the concept of gravity itself. This power is perhaps even more significant than would be a pure assertion of discretion, as it potentially enables the Prosecutor to independently engage in lawmaking.